Citation Nr: 0828140
Decision Date: 08/20/08 Archive Date: 08/28/08
DOCKET NO. 06-08 518 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to service connection for a low back condition.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Services
ATTORNEY FOR THE BOARD
Anthony M. Flamini, Associate Counsel
INTRODUCTION
The veteran had active service from May 1968 to December
1969.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a December 2002 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Atlanta, Georgia.
In his March 2006 substantive appeal, the veteran indicated
that he wanted a Travel Board hearing. However, in
correspondence received in August 2008, he canceled his
scheduled hearing and expressed his desire for the Board to
proceed with his appeal.
FINDING OF FACT
Resolving all reasonable doubt in favor of the veteran, the
Board finds that he sustained a low back injury during combat
in service and currently has residuals of that injury.
CONCLUSION OF LAW
A low back condition was incurred in service. 38 U.S.C.A. §§
1110, 1131, 1154(b) (West 2002); 38 C.F.R. § 3.303, 3.304
(2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In
this case, the Board is granting in full the benefit sought
on appeal. Accordingly, assuming, without deciding, that any
error was committed with respect to either the duty to notify
or the duty to assist, such error was harmless and need not
be further considered.
Service connection may be granted for disability due to
disease or injury incurred in or aggravated by service. See
38 U.S.C.A. §§ 1110, 1131. If a chronic disorder such as
arthritis is manifest to a compensable degree within one year
after separation from service, the disorder may be presumed
to have been incurred in service. See 38 U.S.C.A. §§ 1101,
1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
The veteran's service records reflect that he engaged in
combat. In this regard, his military occupational specialty
was Light Weapons Infantry, and his awards included the
Purple Heart. In the case of any veteran who engaged in
combat with the enemy in active service with a military,
naval, or air organization of the United States during a
period of war, campaign, or expedition, the Secretary shall
accept as sufficient proof of service-connection of any
disease or injury alleged to have been incurred in or
aggravated by such service satisfactory lay or other evidence
of service incurrence or aggravation of such injury or
disease, if consistent with the circumstances, conditions, or
hardships of such service, notwithstanding the fact that
there is no official record of such incurrence or aggravation
in such service, and, to that end, shall resolve every
reasonable doubt in favor of the veteran. Service connection
of such injury or disease may be rebutted by clear and
convincing evidence to the contrary. The reasons for
granting or denying service connection in each case shall be
recorded in full. 38 U.S.C.A. § 1154(b).
The veteran contends that he sustained an injury to his back
in service as a result of a land mine explosion while serving
in Vietnam. He presented testimony to this effect during his
personal hearing in December 2003. In addition, the veteran,
the recipient of a Purple Heart medal, testified that he
reported back pain while undergoing treatment in Yokohama,
Japan, but it was not acknowledged because the physicians
were dealing with other, more severe injuries at the time.
The Board notes that the veteran previously established
service connection for a post shrapnel injury of the right
wrist and index finger with degenerative joint disease
stemming from the same in-service land mine incident in
January 1969.
Although his December 1969 Report of Medical Examination at
separation indicated that his spine and other musculoskeletal
groups were within normal limits, he reported having "back
trouble" in his December 1969 Report of Medical History.
The Board notes that this contemporaneous history tends to
support his current testimony of having back problems in
service.
After service, the veteran was treated for back pain in 1983
after being involved in a motor vehicle accident. Post-
service treatment records also reveal that he also injured
his back at work in March 1996.
The veteran was afforded a VA joints examination in August
2005 for the purpose of evaluating his claim. The examiner
reviewed the claims file, conducted the examination, and
diagnosed the veteran with "[l]ow back pain secondary to a
blast injury in Vietnam now with mild spinal stenosis,
degenerative joint disease, degenerative disc disease, and
disc bulge." The veteran was afforded a VA spine
examination in July 2007. After reviewing the claims file,
the examiner concluded that he could not resolve the etiology
of the veteran's current low back condition without resorting
to mere speculation.
Based on the above referenced evidence, as well as on
provisions of 38 U.S.C.A. § 1154(b), the Board accepts that
veteran's account of having received injuries as the result
of a land mine explosion during combat in service. The Board
also notes that there is evidence of a current back disorder,
and the medical opinions are evenly divided as to whether the
current problems are related to service.
Based on the foregoing evidence, and resolving all doubt in
favor of the veteran, the Board concludes that the veteran's
low back condition, manifested by spondylosis and
degenerative arthritic changes, was incurred in service.
Accordingly, the claim for service connection may be granted.
ORDER
Service connection is granted for a low back condition.
____________________________________________
MICHAEL MARTIN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs